JUDGMENT : S. Acharya, J. - The Appellant stands convicted u/s 304 Part-I, Indian Penal Code and has been sentenced there under to R.I. for seven years. 2. It is not necessary for me to narrate the prosecution and the defence cases as on hearing the counsel appearing for, both the parties and on a perusal of the depositions of some of the important witnesses I have decided to remand this case for retrial for reasons stated above. 3. The Appellant was committed to the Court of Sessions for a charge u/s 302. Indian Penal Code Two other accused persons (since acquitted) were also sent up along with the Appellant to stand their trial for a charge u/s 302/114. Indian Penal Code From the records of the case it transpires that the Sessions Trial in question (Sessions Trial No. 51-C of 1970) was taken up by the 2nd Additional Sessions Judge, Cuttack in the Athgarh circuit. The Appellant and the other two accused persons (since acquitted) were produced before the Sessions Court on 27-1-1971 and the charges framed against them as stated above were read out and explained to the accused persons and they pleaded not guilty to the same. After going through the said formality, as is evident from the order sheet of the Sessions Judge's Court, the accused persons filed a petition for the appointment of a State defence counsel as they were not able to appoint any counsel of their own to defend them in the case. That petition was allowed on that day, and the learned Sessions Judge then as there appointed Sri Raghunath Patnaik, a local lawyer, as the State, defence lawyer for on the three accused persons. Thereafter, on that day the Associate Public Prosecutor filed Hazira for prosecution witnesses and filed some documents in Court. A copy of the brief was handed over to the above-named State defence lawyer on that date. Soon thereafter the Court framed charge u/s 302, Indian Penal Code against the Appellant and u/s 302/114, Indian Penal Code against the other two accused persons (since acquitted). The said charges were read over to them and when they pleaded not guilty to the same and claimed to be tried, 8 prosecution witnesses (p.ws. 1 to 8) were examined and cross-examined on that very day. The said charges were read over to them and when they pleaded not guilty to the same and claimed to be tried, 8 prosecution witnesses (p.ws. 1 to 8) were examined and cross-examined on that very day. As no other witness was present on that day, the case was adjourned to the next day, and on the next day 10 witnesses were examined and cross-examined. Some documents were proved and exhibited on behalf of the prosecution on that day. On 29-1-1971 two witnesses were recalled and examined on the petitions filed one by the State defence counsel and another by the Associate Public Prosecutor. On 29-1-1971 the statements of the accused persons were recorded and arguments were heard from both the sides. The judgment of that case was delivered on 5-2-1971. 4. Mr. Kanungo, the learned Counsel appearing for the Appellant submits that as the defence counsel was engaged for the Appellant by the Sessions Judge on the date on which the Judge took up the trial of the case and examined as many as 8 witnesses immediately thereafter, the defence counsel did not have any time to properly go through the papers supplied to him in Court just before the beginning of the trial, and to prepare the defence for the accused in the correct perspective. Mr. Kanungo also says that as the examination of the witnesses began immediately after the appointment of the defence counsel, he could not have taken necessary instruction from the accused persons to properly cross-examine the witnesses. As the trial of the case began in the appointment of the State defence counsel in the manner stated above. Mr. Kanungo submits that the accused persons did not have real legal assistance, in case of this nature, to defend themselves and were highly prejudiced thereby; and the engagement of the offence counsel was more for the purpose of satisfying the formality and not for giving proper legal aid to the accused persons. 5. From the order sheet of the case it is evident that before the engagement of the defence counsel on 27-1-1971 the - charge had already been read over to the accused persons on that day. Thereafter, on the aforesaid petition of the accused persons the State defence counsel was appointed and very soon thereafter the charges as stated above were framed against the accused persons and their pleas were recorded. Thereafter, on the aforesaid petition of the accused persons the State defence counsel was appointed and very soon thereafter the charges as stated above were framed against the accused persons and their pleas were recorded. Soon thereafter, 8 prosecution witnesses were examined in the case. Out of those 8 prosecution witnesses six, as seen from the records, deposed to have witnessed the alleged occurrence. On the next day ten witnesses, including 3 alleged eye-witnesses, were examined on behalf of the prosecution. The recorded depositions show that the State defence counsel, engaged on 27-1-1971, cross-examined the witnesses to some extent, but as can be seen from their depositions, their cross-examination was mostly directed on superficial matters, and only stereotyped questions were asked. The cross-examination indicates that the defence counsel was not posted with the facts of the case and all the materials on record to properly cross-examine the witnesses in the correct perspective. The Appellant was charged for on offence u/s 302, Indian Penal Code and the other two accused persons were charged for the offence u/s 302/114, Indian Penal Code. The responsibility, both of the counsel and the Court in dealing with a matter of this nature, is rather very heavy and they should have applied their mind and made all possible efforts to see that the trial of the case proceeded in accordance with law, not only as per its letters but in its true spirit and perspective. 6. In the case of Kamala Domen v. State 1971 (1) C.W.B. 656, the Government Circular No. 1337-53-J-3C-2 dated 3-8-1918 which is applicable to such cases has been quoted. On a discussion of the provisions of the said Circular and quite a number of decisions it was held therein that the appointment of a State defence counsel, in a manner almost similar to the present case before me, did not serve the purpose and the accused was greatly prejudiced in his defence and accordingly it was held that the trial of that case was vitiated. On the said finding the case was remanded to the trial Court for a fresh trial. After the said decision, another Division Bench of this Court in Mangulu Behera v. State 1971 (2) C.W.R. 422, referred with approval to the first mentioned case of this Court, and the judgment of conviction was set aside and the case remanded to the Sessions Court for retrial. After the said decision, another Division Bench of this Court in Mangulu Behera v. State 1971 (2) C.W.R. 422, referred with approval to the first mentioned case of this Court, and the judgment of conviction was set aside and the case remanded to the Sessions Court for retrial. The law on the subject has been elaborately dealt with in the decision of Kamala Domen I and it is needless for me to deal with this aspect of the matter in detail in this judgment. 7. In this case there is of course nothing on record to show that the defence counsel, engaged on 27-1-1971 asked for any time to prepare the case but the counsel appointed by the Sessions Judge in his Athgarh circuit probably did not like to dissatisfy the Court by asking for time for that purpose, as that would have upset the calendar of the Sessions Judge in that circuit sitting the sense of obligation on the part of the defence counsel towards the Judge for the above engagement in this case might also have caused hesitation in his mind to ask for time in the case. In the case of Bashira v. State of U.P. AIR 1968 S.C. 1313 , reported in it has been held that in appointing a State defence counsel for the accused persons in a matter like this, the Court of Sessions must ensure that the time granted to the counsel was sufficient to prepare for the defence. In the case of Owais Alam v. State of U.P. 1969 (1) S.C.D. 574, reported in their Lordships in dealing with a matter regarding the appointment of counsel amicus curiae for the accused persons, observed that the State defence counsel should be given sufficient time to discuss the matter with the accused and chalk out the time of defence. It has been observed therein: A counsel appointed by the learned Sessions Judge as amicus curiae may hesitate to ask for time as it would upset the calendar of the Sessions Judge. It was for the Court itself to give sufficient time to the counsel to go through the papers and hold consultations with the Appellants. Their Lordships in that case set aside the conviction and sentence of the accused and directed retrial of the accused persons. It was for the Court itself to give sufficient time to the counsel to go through the papers and hold consultations with the Appellants. Their Lordships in that case set aside the conviction and sentence of the accused and directed retrial of the accused persons. In the above-mentioned Kamala Domen's case 1971 (1) C.W.B. 656, of this Court it has been observed: Where the accused has a right to the free legal aid under any rule having the force of law, and he is deprived of such aid and/or opportunity for preparing for effective defence by denying sufficient time to the amicus curiae counsel appointed under such rule and due to such non-compliance of the mandatory provisions of such law or rule or violation of principles of fair trial, it results in deprivation of the liberty of a citizen, the question of prejudice does not arise. In such cases, the trial having taken place In derogation of the right of the accused becomes void, and therefore, there is no question, of prejudice. Even if there is no rule which confers such a right on the accused, but there are in existence Government circulars which direct conferment of this privilege of a free legal aid, and adequate opportunity for preparation of the defence, the counsel for the accused should be granted sufficient time for preparation of the defence as otherwise there cannot be proper and fair trial and in such cases prejudice would be writ large on the face of the proceeding except in the limited cases where records snow that there has not been in fact any kind of prejudice that can, be contemplated. The trial may not be void but will certainly be vitiated having taken place in violation of principles of fair trial. In either case, the judgment must be quashed and retrial must be held. 8. Mr. Patra, the learned Standing Counsel for the State, very fairly concedes that the trial of this case, without giving sufficient time to the State defence counsel to prepare the case, might have caused prejudice to the convicted accused, the Appellant in this case, and very fairly Mr. Patra does not oppose the retrial of this accused. 9. 8. Mr. Patra, the learned Standing Counsel for the State, very fairly concedes that the trial of this case, without giving sufficient time to the State defence counsel to prepare the case, might have caused prejudice to the convicted accused, the Appellant in this case, and very fairly Mr. Patra does not oppose the retrial of this accused. 9. On bearing the counsel appearing for both the parties and on going through the order sheet and the depositions of many of the witnesses in this case, and on the above considerations, I am satisfied that the accused persons were greatly prejudiced and the trial of the case was vitiated because sufficient time was not given to the defence counsel in order to enable him to prepare the case for the defence. On the above reasons the conviction of the Appellant u/s 304 Part-I, Indian Penal Code and the sentence imposed against him there under are set aside. As the Appellant did not have a fair and proper trial in the Court below for reasons stated above, I direct that the Appellant be tried afresh in accordance with law after engaging a suitable lawyer for the Appellant, and giving him all necessary papers and the opportunity to contact the Appellant and the time to prepare the case. The retrial of course shall remain confined only to the Appellant and with regard to a charge u/s 304 Part-I. Indian Penal Code, as the Appellant has peen acquitted of the charge under Section-302, Indian Penal Code and the other two accused persons have already been acquitted of the charges framed against them. The order of acquittal in favour of the accused persons, as is well settled, cannot any way be interfered with in this appeal. In this connection the decisions reported in State of A.P. v. Thadi Narayana AIR 1962 S.C. 24. Thadi Narayana Vs. The State of Andhra Pradesh, Indra Kumar Nath v. The State AIR 1954 Cal. 374 and Gopalan Vs. State of Kerala may be seen. 10. The retrial of the Appellant on a charge u/s 304 Part-I, Indian Penal Code should be expedited. 11. The appeal is allowed to the extent stated above. Final Result : Allowed